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[2015] ZAGPPHC 185
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Venter v MEC For Health Gauteng Provincial Government (30083/12) [2015] ZAGPPHC 185 (26 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 30083/12
In
the matter between:
MR
PR
VENTER
................................................................................................................
Plaintiff
and
THE MEC FOR
HEALTH GAUTENG PROVINCIAL
GOVERNMENT
.............................................................................................................
Defendant
JUDGMENT
POTTERILL
J
Cause
of action
[1]
The plaintiff issued a claim for loss of support she suffered as a
result of the death of her husband whom was admitted to the
Steve
Biko Hospital for an operation. It is common cause that the
plaintiff and the deceased was married and that the deceased
supported the plaintiff. It was also conceded that the deceased
was employed and earned a salary. It is also common
cause that
the amount of the loss of support was correctly calculated by Robert
J. Koch, an actuary, in the amount of R451 609.99.
It is
further common cause that the medical staff were specifically during
or about the period 29 August 2011 up to and including
14 September
2011 during the treatment of the deceased, in the employment of the
defendant, and were acting within the cause and
scope of such
employment.
Common
cause facts
[2]
The following common cause facts and chronology serve as background
to the claim:
2.1
The deceased had a squamous carcinoma on his tongue and on the floor
of his mouth. This cancer at the clinical stage was
classified
as a T3 N1. The hospital’s multi-disciplinary team
decided to operate on the deceased to remove the cancer
despite a
history of smoking for 30 years, drinking two glasses of wine and
experiencing weight loss due to this disease.
The deceased body
mass index was good and the smoking was the cause of the mouth
cancer;
2.2
After the operation the deceased would receive combination therapy
resulting in reasonable results with international standards
being a
45-65 % survival of the deceased for five years;
2.3
On 7 September 2011 the operation took 13 hours to complete and
therefore the deceased was hospitalized in the surgical ICU
and was
ventilated overnight;
2.4
The deceased had to be artificially fed. The option chosen was
to insert a nasogastric tube into the stomach of the deceased.
In layman’s terms the deceased was fed through a tube through
the nose to the stomach. The medical staff inserting
this tube
does so “blindly” in the sense that they cannot see if
the tip of the tube is in fact in the stomach.
The staff is
therefore required to test whether the tube was indeed inserted in
the stomach. Three tests can be utilised.
The most unreliable
of the three is to with a stethoscope listen for gurgling noises in
the stomach after air is injected into
the tube. This is the
quickest and easiest test. The second test is to aspirate on
the tube to see if greenish fluid
appears. This greenish fluid
can only come from the stomach. From this test a clinical
conclusion can be drawn that
the tube is in the stomach. The
best and absolute reliable test is to take an x-ray after the
insertion;
2.5
On the 11
th
of September 2011 the deceased was transferred from the ICU to High
Care because his recovery was good;
2.6
Despite his good recovery the notes continuously reflect that there
was an abnormal amount of secretions described as “
creamish
loose”
. This is recorded on
the 11
th
of September 2011 at 08h00, again at 11h00 on the same day.
Again at 15h00 as “
still has a lot
of lung secretions”
. At
18h00 the same day “
still has a
lot of loose cream secretions”
.
At 19h00 the following is recorded “
has
a lot of thick secretions coughing productively”
.
At 21h00
inter alia
the
following is recorded “
Patient
having severe thick and creamy secretion”
.
The continued note at 21h00 reads as follows “
Patient
at risk for respiratory distress manifested by formation of mucous
plug as evidenced by severe secretions”
.
On the 12
th
of August 2011 03h50 it is once again recorded “
Suctioned
patient loose creamy secretions”
.
2.7
On the 12
th
of September 2011 at 14:00 Dr. Fourie inserted a new flexi-flow tube
(a nasogastric tube). A note was made that read as follows:
“
Another flexi-flow reinserted by
Dr. Fourie: tube tested by syringe and stethoscope 2E –
tested flexi-flow tube by aspirating
stomach-like contents. Dr.
Fourie reported that the tube was in situ. Feed restarted as
prescribed.”
At that stage
the deceased was fed 75 ml per hour;
2.8
On 12 September 2011 at 14:00 a note was made that the deceased was
“
given inhalations and suctioned
creamy secretianos. He was placed in a high fowler’s
position encouraged to cough out”
;
2.9
On 12 September 2011 at 18:00 the notes
inter
alia
reflect the following:
“
Hourly excessive loose secretions
creamy in colour. Inhalations given and suctioned regularly
with chest physio. Placed
in high fowler’s position”
;
2.10
On the 12
th
of September 2011 between 19:00 and 20:00
inter
alia
the following is reported:
“
Patient suctioned secretions a
lot but loose and white in colour”
;
2.11
On 12 September 2011 at 23:00 the following is recorded: “
The
patient started to become restless … Patient suctioned to
improve saturation, secretes a lot and were feeds from the
stomach.
Feeds stopped. Dr. Bezuidenhout and Dr. Coetzee informed.
Patient put on CPAP Peep 5. Patient
did not improve”
;
2.12
At 14:00 a chest X-ray was ordered by Dr. Bezuidenhout “
when
they viewed the X-ray they found that the flexi-flow was in the
lungs. It was taken out and the patient made to lie on
side for
discomfort”;
2.13
Dr. Bezuidenhout provided retrospective notes on the 13
th
of September 2011 from memory which reads as follows: “
I
was called to High care at approximately 01h00 by the sister in
charge, Sr Coetzee, to see mr Venter who had decompensated in
the
unit. This was an acute decompensation according to the
sisters. Apon my arrival in the unit minutes later the
patient
was on facemask oxygen and was saturating at 85%. He was
suctioned repeatedly to remove what seemed to be enteral
feeds from
his tracheostomy. He indicated that he felt better after doing
this a few times. Because the fluid that
was suctioned from his
trachy looked like feeds I looked at his previous CXR to see whether
the tube position had been confirmed
to be in the stomach and it had
been. I however repeated the CXR and it revealed that the
feeding tube was now in the right
main bronchus. There was also
consolidation of the right lower/middle lobe … I continued to
phone the consultant on
call, prof Pretorius, whom was unavailable
via cellular telephone. I then phoned Dr Vosloo, another
consultant, and discussed
the patient with her and the treatment
instituted so far. The patient continued to improve. Dr
Vosloo concurred with
the current plan of action and added that a
bronchoscopy should be done in the morning”
;
2.14
The patient died on the 14
th
of September 2011 at 22:30;
2.15
The forensic pathologist, Ryan Blumenthal, provided a medic-legal
post mortem examination. In paragraph (iv) he concluded
the
following:
“
That
the chief post mortem findings made by me on this body were the
following: An adult white male with features of having
undergone recent maxillo-facial surgery. The right lung weighed
2180 g and section showed signs of grey hepatisation.
The left
lung weighed 964 kg. Signs of multiple organ failure were
present. Histology confirmed right lung pneumonia
together with
Adult Respiratory Distress Syndrome. According to the available
history, a feeding tube was incorrectly placed
down the right
bronchus with complications.
(iv) that, as a
result of my observations a schedule of which follows, I concluded
that the cause of death was the following:
PROCEDURE-RELATED
DEATH:
INCORRECT
PLACEMENT OF FEEDING TUBE WITH COMPLICATIONS
(IN
A PATIENT WITH RECENT MAXILLO-FACIAL SURGERY)”
;
Expert
evidence of the plaintiff
[3]
Dr. Botha, a specialist physician, testified on behalf of the
plaintiff. His expertise and his experience of 40 years
standing was not in dispute. He testified that he based his
opinions on the records of the hospital and his experience.
[4]
It was his opinion that feeding the patient through the nose and down
the mouth was not the best option. The best option
would have
been to feed the patient with a gastronomy placement i.e. a tube
directly into the stomach. Besides the discomfort
and pain in
the mouth after the surgery it would be the best option in a patient
with oral cancer with clearly far less complications.
[5]
He testified that the records reflected that even before the changing
of the tube it was repeatedly recorded that there was
excessive
secretions from the lungs described as bloody thick secretions
associated with persistent coughing. The restlessness
was
ascribed to nicotine withdrawal symptoms. Despite these
symptoms no X-rays from the lungs were obtained. This is
negligent because the deceased had infection, but an X-ray would have
determined any form of pneumonia. An X-ray would also
have
explained the restlessness. The staff would then not have
assumed that his restlessness was due to a withdrawal state
which was
inappropriately treated with Serenace and other drugs used for
alcohol withdrawal symptoms. The recorded evidence
in fact
shows that his breathing was compromised after the surgery. The
defendant was thus negligent in not having an X-ray
taken.
[6]
The breathing distress and the nature and extent of secretions
returned from suctioning of the lungs already indicated a degree
of
aspiration passed the tracheostomy tube before the major event of
aspiration which occurred on 12 September 2011 and there is
no
indication that aspiration prevention strategies were in place.
A small amount of food secretions is normal but the amount
indicated
on the records required aspiration prevention strategies. A
simply X-ray would have determined the extent and reason
for the
breathing distress; not taking an X-ray constituted negligence
on behalf of the defendant.
[7]
The reinsertion of the nasogastric tube on 12 September was not
followed by assessment of the position of the nasogastric tube.
The tube was in the right main bronchus and this was the main reason
for the rapid decline in his status and the irreversible shock
that
caused his death the next day. The expert was quite certain
that the tube was put into the lung and did not dislodge.
An
X-ray was not taken rendering the defendant negligent.
[8]
Dr. Bezuidenhout was advised by Dr. Vosloo telephonically to do a
bronchoscopy the next morning. In Dr. Botha’s
opinion
acute management of aspiration involves an emergency rigid
bronchoscopy. This is so because after 9 hours the lung
would
have solidified and the procedure would not achieve any required
results. It was thus negligent to wait for 9 hours
to do a
bronchoscopy.
[9]
The defendant was also negligent in the lack of senior consultant
availability when needed in that Dr. Bezuidenhout was desperately
seeking help.
[10]
When confronted with Dr. Luvehego’s opinion Dr. Botha persisted
that the deceased did not die from progressive sepsis,
but from
terminal sepsis that set in after the aspiration. He was
persistent that not only 8 hours after the reinsertion
of the feeding
tube was there cause for concern. He testified that
already two hours after the insertion there was
cause for concern
because the deceased was encouraged to cough out stomach feed that
should not be there. Furthermore, the
deceased’s PO2 was
low for a person on a ventilator. The nurses kept on recording
that too many creamy secretions were
prevalent and therefore
regularly suctioned the deceased. They also put him in an
upright position. Although the nurses
wrote “
parameters
acceptable”
this was not the
case. The patient was heavily sedated and only communicated
with sign language. “
Parameters
acceptable”
is just somebody’s
impression and no opinion can be based thereon.
[11]
Dr. Botha persisted that the deceased died as a result of the feeds
in the lung and the laboratory reports proved that.
[12]
Dr. Botha admitted that tubes can dislodge, but found it unacceptable
that it would migrate to a completely different location
i.e. the
lung. This is supported by the fact that two hours after the
insertion the deceased showed worrying signs.
[13]
Dr. Botha accepted that there are three tests that can be utilised to
check that the tube was inserted in the stomach.
He persisted
that he would not advise, and does not practise, by testing with
inflating air through the tube because it is wholly
unreliable.
He also found the method of aspirating on the tube, archaic and very
unreliable. The only reliable test
is an X-ray.
[14]
He concluded that the major event of aspiration or infusion into the
right lung resulted directly from the malpositioning of
the feeding
tube. This event triggered Mr. Venter’s rapid
deterioration into a state of irreversible systemic sepsis
and organ
failure and death. Had it not been for this episode he would on
a balance of probabilities have survived the surgery
albeit that his
long term prognosis was not good.
[15]
Dr. Botha denied that Mr. Venter was severely mal-nutritious and had
active infection which resulted in progressive sepsis
which led to
multiple organ disfunction. The body mass index of Mr. Venter
was within prescribed parameters. There
would be infection
after an operation but there was no pre-operational sepsis.
[16]
He agreed that the lung could not hold 670 ml of feed but in this
instance it did because the post mortem report clearly shows
the
discrepancy between the weight of the two lungs. The tube was
in the lung and the feeds went into the lung. The
weight of the
lung cannot be ascribed to inflammation of a lung alone.
Defendant’s
expert evidence
[17]
On behalf of the defendant Dr. Luvhengo was called. He is a
principal surgeon and a senior lecturer and also on the examination
board. He is an endocrine surgeon and not a specialist
physician. He based his opinion on the reports provided to
him. He did not have the forensic officer’s medico-legal
post mortem report when he compiled his report.
[18]
On the information supplied to him he found that pre-operation the
deceased was significantly undernourished and anemic.
The
deceased’s haemoglobin reflected chronic illness. His
white cell count was raised showing he had active infections,
probably of the lungs. Mr. Venter was severely albuminaemic
which alone had put him at risk of at least 40 % 30 day
post-operative
mortality mainly from pulmonary. The deceased’s
prognosis was less than 50 % of surviving for 5 years due to the
above.
[19]
It was his opinion that the deceased became progressively more
septic. The progressive sepsis is in fact what caused
the death
of the deceased. The dislodgement of the feeding tube leading
to infusion of the interal feeds into his lung just
expedited his
death.
[20]
It was his opinion that there was no negligence on the part of the
defendant. Dr. Fourie had performed the necessary
tests to
check if the tube was positioned in the stomach. He testified
that it was highly unlikely that the feeding tube
had all along been
in the right mainstream bronchus from reinsertion at 14:00 and that
interal feeds were being infused into his
lung, without him showing
signs until his sudden decompensation. The tube dislodged and
was not inserted in the lung.
Throughout the deceased stay in
ICU and High Care Mr. Venter was monitored closely reviewed by
treating health care teams at most
on a two hourly basis.
[21]
Dr. Luvhengo could not explain why he referred in his report to the
deceased as the deceased’s wife. He was however
certain
that it was just a mistake and that the report pertained to the
deceased. He persisted that as an endocrine specialist,
not a
specialist physician, he could give an opinion on post-operative care
in the ICU and High Care. He knew the patient
had died but did
not ask for the post mortem report because he did not want to furnish
a “biased report”. He
admitted that the
medico-legal report was exceedingly thorough but rejected the finding
that the deceased died due to a procedure
related death, because that
was not based on the forensic expert’s own knowledge. He
persisted that there were infections
and because of this thus the
deceased had sepsis. He persisted that the test performed by
Dr. Fourie was protocol because
a patient can’t be exposed to
too much radiology. He did agree that an X-ray is the most
reliable test pertaining to
where the placement of the tube was.
It was his opinion that the patient was “up and down” the
whole time indicative
thereof that his lungs were not functioning
well. The deceased had to be suctioned on multiple occasions on
each day from
the 8
th
to the 14
th
of September 2011.
[22]
There was no negligence in not immediately performing a bronchoscopy
because the deceased’s oxygen saturation improved
after
suctioning.
[23]
The defendant also called Professor Pretorius. He was the
surgeon that performed the surgery and is the Head of Critical
Care
of the Steve Biko Hospital. Unfortunately the professor could
not favour the court with his opinion because there was
no expert
notice filed. At best the court could take cognisance of the
fact that he performed the operation and that in his
opinion the
operation was a success. The deceased had oral cancer due to
his smoking and had weight loss due to cancer.
The
multi-disciplinary team was sure that the prognosis of the deceased
was 45-65 % for 5 years.
[24]
Post-surgery the deceased did well in the ICU, but he had to contend
with restlessness and the airway secretions. They
decided to
feed artificially with a nasal tube. He could not explain how
the tube got into the lung and expressly stated
that in his career he
had never seen a dislodgement from the stomach into a lung. He
conceded that was the tube not in the
lung the deceased would have
progressively improved. He accepted the finding of the
medico-legal report, but he thought the
lung size was due to
inflammation and not due to tube feeding. He agreed that an
X-ray is the best test to see whether the
tube is in the stomach but
it costs more money and he was satisfied with aspiration because only
stomach feeds aspirate green.
This was an unfortunate incident
and he had put in place corrective measures to prevent any such
reoccurrence.
Argument
on behalf of the plaintiff
[25]
On behalf of the plaintiff it was argued that it was common cause
that the tube was in the lung where it should not be.
The
defendant could not explain it. The evidence of Dr. Botha was
not in cross-examination criticised or contradicted and
it was thus
untested and must be accepted. Contrary to this Dr. Luvhengo
was not an expert in critical care post-operative.
He disagreed
with the results in the post mortem report whereas Dr. Pretorius
agreed with the report. If one then analyses
the expert
evidence with reference to
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001
(3) SA 1188
(SCA)
the opinion of Dr.
Luvhengo is not reliable. It is clear from Professor Pretorius’
evidence that it was accepted that
something like this should not
happen again and therefore that the hospital was negligent. The
plaintiff had thus proved
her claim.
Argument
on behalf of the defendant
[26]
On behalf of the defendant it was argued that there was no negligence
on the part of the defendant because Dr. Fourie tested
where the tube
was. The test was done in terms of the respondent’s
practice and protocol. The mere fact that
the test was not
fool-proof does not render the defendant negligent
per se
–
Blyth v Van den Heever
1980 (1) SA 191
(AD)
at
p221A-C. The court was urged to disregard the finding of the
medico-legal report pertaining to what caused the death because
no
lung could absorb so much feed and that its size was due to
inflammation. The lung was accordingly inflamed, but not by
the
feeds. Absent an act and fault there was no liability and the
plaintiff’s claim should be dismissed with costs.
Dr.
Fourie was not called because she is living in the Free State.
There was no expert notice filed for Professor Pretorius
because he
was just called to testify pertaining to the post-operative care of
the person as a doctor, not as an expert.
The
issue to be decided
[27]
It is not in dispute that there was a contract between the deceased
and the defendant that the medical practitioners would
undertake the
treatment of the deceased with the reasonable skill and care of the
practitioners in their field. What the
court must thus decide
is the negligent breach of the contract and the causation of the
death.
[28]
On behalf of the defendant it was also argued that the plaintiff had
not proven any act on behalf of the defendant and must
therefore fail
in her claim. I do not understand this argument. It is
common cause the tube was inserted into the lung
instead of the
stomach. Dr. Botha testified that the personnel of the
defendant should have observed same due to the worrying
signs
observed within two hours after the insertion. Furthermore the
acts of not taking an X-ray, not performing a bronchoscopy
and the
lack of a senior consultant available to Dr. Bezuidenhout all
constitute negligent breach of the contract; i.e. not
exercising reasonable skill and care.
[29]
If the defendant’s argument is that the mere fact that the tube
was in the lung does not render the defendant negligent,
then I am
well aware of the
dictum
in
Van Wyk v Lewis
1924
AD 438
at 462 as confirmed in
Buthelezi
v Ndaba
2013 (5) SA 432
(SCA)
at
paragraph 16 that the “
maxim res
ipsa loquitur could rarely, if ever, find application based on
alleged medical negligence. The human body and its
reaction to
surgical intervention are far too complex for it to be said that,
because there was a complication, the surgeon must
have been
negligent in some respect.”
Res ipsa loquitur
refers
to delictual claims but, where it is common cause that the tube
should have been inserted in the stomach, but was found in
the lung,
such action clearly cannot constitute exercise of reasonable skill
and care of the medical practitioners unless the defendant
can
provide reasons sustaining that the medical practitioners were not
negligent in so-doing.
[30]
The plaintiff had proven that the tube was in the lung. The
medico-legal report confirms as the cause of death that the
death was
procedure related due to the incorrect placement of feeding tube with
complications. For this court to accept that
this constituted
breach of contract this evidence the court must make an election
between the opposing views of the expert witnesses.
This must
be done “
on an analysis of the
cogency of the underlying reasoning which led the experts to their
conflicting opinions”
–
Buthelezi v Ndaba
2013
(5) SA 437
(SCA)
paragraph 14.
[31]
Dr. Botha has been a specialist in post-operative special and high
care for 40 years. Dr. Luvhengo is not such a specialist
and
although he could give aftercare as a surgeon he is not a specialist
physician. Dr. Botha expressed the view that putting
a tube in
a mouth down the throat after a 13 hour operation to the throat and
mouth and tongue of a patient is not according to
practise. It
would have been advisable to feed the patient through a tube directly
into the stomach. It must be remembered
that the deceased also
had to remove some of his teeth before the operation. Professor
Pretorius testified that they did
not put a tube in the stomach
because the artificial feeding was not going to be for a long
period. On analysis of this reasoning
Dr. Botha’s
reasoning is logical and preferred above that of the professor, but
this does not require further comment as
the foundation of the
plaintiff’s claim does not lie herein. It does however
reflect that Dr. Botha’s testimony
from the outset was logical
and based on sound reasoning.
[32]
It is common cause that even before the replacement of the tube on
the 12
th
of September 2014 the deceased had breathing distress and creamy
secretions coming from the lungs. Dr. Botha testified that
not
taking X-rays to ascertain as to what was causing the restlessness
i.e. if there was a form of pneumonia present was negligent.
It
would also have disclosed if there was infection in the lungs or just
in the upper part where the operation was performed.
On the
other hand Dr. Luvhengo testified that the deceased had active
infection pre-operation which he thought was most probably
in the
lungs. In his report he however set out a further opinion that
the single most probable cause was respiratory tract
infection.
Dr. Luvhengo further set out that there were excessive secretions
which were initially bloody and thick, later
brownish and finally
loose and creamy and continued to drain from the deceased’s
airways. He repeatedly had to be suctioned
on multiple
occasions on each day from the 8
th
to the 14
th
of September 2011. Upon logical reasoning the opinion of Dr.
Botha must be accepted. The deceased was restless and
struggling to breathe and an unusual amount of secretions were coming
from the lungs. The amount of the creamy secretions
and the
prevalence thereof was unusual and once again a simple X-ray would
have ascertained what is causing this. On the
common cause fact
that the deceased had to be suctioned on multiple occasions every day
from the 8
th
to the 14
th
of September 2011 it is illogical to dismiss the taking of an X-ray
because the patient was “up and down” the whole
time
indicative thereof that his lungs were from the beginning not
functioning well. It is common cause that the patient’s
lungs were not functioning well, yet no X-ray was taken to ascertain
why. This is a simple task clearly not exercising reasonable
skill and care.
[33]
On the 12
th
of September 2011 the tube is reinserted. Dr. Fourie who
performed this task is not called because her notes are accepted
and
she is in the Free State. The essence of this matter is the
reinsertion of the tube by Dr. Fourie; living in the
Free State
is not a good enough excuse not to testify. Even if the notes
pertaining to her actions by the medical staff are
accepted then I
find the evidence of Dr. Botha that an X-ray must be taken to
ascertain if the tip of the tube is in the stomach
as being logical
and sound practice. The mere fact that two other tests were
performed is insufficient. It is in fact
common cause that
listening to the stomach after air was injected in the tube is
unreliable. Dr. Luvhengo testified that
the aspiration of the
tube to see if a greenish fluid appears is a commonly used reliable
test. Dr. Botha found it to be
archaic and not to be
practised. In
Michael and
Another v Linksfield Park Clinic (Pty) Ltd and Another
2001
(3) SA 1188
(SCA)
at paragraph 30 is
found that even if certain tests are universally held as being proper
a court will not find it to be reasonable
if an obvious risk could
have been guarded against by utilising another test. Where a
doctor executes a medical treatment
“blindly” eyes are
needed to confirm that the treatment was correctly performed.
It would be logical to ascertain
from a simple X-ray test whether the
tip of the tube is in fact in the stomach; the X-ray will be
the eyes of the doctor.
I find the evidence of Dr. Botha that
an X-ray is a necessary requirement the benchmark for such
procedure. The defendant’s
conduct by not taking an X-ray
thus cannot be logically supported especially in view of the
deceased’s continued secretions
and breathing problems.
[34]
Dr. Botha and Professor Pretorius agreed with the conclusion of the
medico-legal report. Dr. Luvhengo could give no good
reason as
to why when forming his opinion he did not take cognisance of the
medico-legal report. Stating as a reason that
he did not want
to provide the court with a biased opinion already leaves the court
with a question mark pertaining to what would
influence this doctor
in coming to his conclusions. It is common cause that the
artificial feeds were entering into the lung
due to the tube being in
the lung. It was Dr. Luvhengo’s opinion that a lung could
not absorb so much feeds and that
the reason for the lung being so
inflated was in fact inflammation of the lung. The reason for
this is his conclusion that
the deceased did not show any signs until
his sudden decompensation at 23h00. This is simply not logical
as excessive secretions
were noted creamy in colour, and the deceased
had to be repeatedly suctioned on multiple occasions there certainly
were signs upon
which the defendant had to act.
[35]
Dr. Botha conceded that tubes can dislodge but he found it improbable
that a tube would dislodge and then reinsert itself in
a lung.
He was adamant that in fact the tube had been inserted into the
lung. Dr. Luvhengo testified that the tube
probably dislodged
and based this on the fact that Dr. Fourie had tested where the tube
was inserted. He also based it once
again on the fact that the
deceased did not show any signs that interal feeds were being infused
into his lung until his sudden
decompensation at 23h00.
Professor Pretorius on the other hand testified that he had never
seen a dislodgment of a tube from
the stomach into a lung. I
once again find the opinion of Dr. Botha to be a defensible
conclusion because although tubes
can dislodge it is unacceptable to
then insert in a completely different location i.e. from the stomach
to the lung. Even
if I should be wrong in this finding then the
signs showed by Mr. Venter even two hours after the reinsertion
should have alerted
the respondent to at the very least take an X-ray
to explain the excessive secretions and breathing problems of the
deceased.
[36]
Dr. Botha’s evidence that a bronchoscopy 9 hours later would
serve no purpose as the lung would have solidified and the
procedure
would not have achieved any results was uncontested. Acute
management of the deceased’s aspiration was necessary
and it
most certainly required an emergency rigid bronchoscopy. The
defendant was thus clearly negligent in not exercising
reasonable
skill and care by waiting until the next morning to perform any
bronchoscopy.
[37]
Dr. Luvhengo testified that the deceased in fact died from
progressive sepsis which led to multiple organ dysfunction.
This is in direct contradiction to the finding of the medico-legal
report. There is no logical basis on which Dr. Luvhengo
can
contest the evidence of the medico-legal report. On the other
hand Dr. Botha clearly sets out why there was not progressive
sepsis
but terminal sepsis after the aspiration of the lung.
[38]
I am accordingly satisfied that on the preferred evidence of Dr.
Botha the defendant and its medical practitioners and staff
were
negligent in not exercising the reasonable care and skill of
practitioners in that field in the treatment of the deceased
in
that:
38.1
The defendant failed to take an X-ray to
ascertain what the reasons for the deceased breathlessness and
secretions were;
38.2
After the reinsertion of the tube an X-ray
should have been taken to satisfy that the tip of the tube was in
fact in the stomach;
38.3
At the very least two hours after the
reinsertion of the tube another X-ray should have been taken to
ascertain why the creamy secretions
were in such amounts and so
prevalent;
38.4
The tube was incorrectly inserted in the
lung;
38.5
An emergency bronchoscopy should have ben
performed.
[39]
I accordingly make the following order:
39.1 The plaintiff
is to pay to the defendant the amount of R451 609.99 as damages
for breach of contract plus the costs of
the action;
39.2 Interest on the
above amount at the rate of 15,5 % per annum and 9 % from 1 August
2014 as set out in the
Prescribed Rate of Interest Act 55 of 1975
to
date of payment;
39.3
In the event that the defendant fails to effect payment of the
plaintiff’s taxed costs of suit within 7 days of the
defendant’s receipt of the signed allocatur to the plaintiff’s
taxed bill of costs then such costs will bear interests
at the rate
of 15,5 % per annum calculated from and including the date of
signature to the allocatur to the plaintiff’s taxed
bill of
costs including the date of final payment.
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE
NO: 30083/12
HEARD
ON: 11 and 12 February 2015
FOR
THE PLAINTIFF: ADV. T.P. KRüGER
INSTRUCTED
BY: Marais Basson Inc.
FOR
THE DEFENDANT: ADV. A.M. JOZANA
INSTRUCTED
BY: State Attorney
DATE
OF JUDGMENT: 26 February 2015